NORTH CAROLINA COURT OF APPEALS
Filed: 1 May 2007
IN THE MATTER OF:
N.D.H., C.J.H, and C.E.H., Iredell County
Minor Children. Nos. 97 JT 126
02 JT 258-59
Appeal by respondents from an order entered 22 September 2006
by Judge Wayne L. Michael in Iredell County District Court. Heard
in the Court of Appeals 2 April 2007.
Lauren Vaughan for Iredell County Department of Social
Mary McCullers Reece for respondent-appellant mother.
Betsy J. Wolfenden for respondent-appellant father.
Holly M. Groce for appellee guardian ad litem.
(See footnote 1)
(respondent-father) and D.H. (respondent-mother) appeal
from an order entered 22 September 2006 terminating their parental
rights to their three minor children, N.D.H., C.J.H, and C.E.H.
For the reasons below, we affirm the order of the trial court.
Facts and Procedural History
The children came into the legal custody of the Iredell County
Department of Social Services (petitioner) on 5 March 2003
following an adjudication that the children were neglectedjuveniles. After review and permanency planning hearings,
petitioner filed motions to terminate the parents' parental rights
on 9 March 2004. The trial court dismissed these motions by order
filed 2 May 2005 and changed the plan to reunification with
respondent-father. Due to subsequent developments, the trial court
changed the plan back to termination of parental rights/adoption by
order filed 25 July 2005.
Petitioner filed a second set of petitions to terminate
parental rights on 24 February 2006. The trial court conducted a
hearing on the petitions during the 22 August 2006 Juvenile Session
of District Court for Iredell County. At the conclusion of the
adjudication hearing, the trial court concluded that four grounds
existed to terminate respondents' parental rights: (1) the parents
have neglected the children; (2) the parents, for a continuous
period of six months next preceding the filing of the petition,
willfully failed for such period to pay a reasonable portion of the
cost of care for the minor children; (3) the parents have left the
children in foster care for a period of more than twelve months
without showing to the satisfaction of the court that reasonable
progress under the circumstances has been made in correcting the
conditions that led to removal of the children; and (4) the parents
are incapable of providing proper care and supervision of the
children such that they are dependent juveniles and there is a
reasonable probability that such incapability will continue for the
foreseeable future and the parents have no alternative child care
arrangement. The trial court then proceeded to a dispositionhearing. After hearing testimony from the social worker,
supervisor and the guardian ad litem, the trial court concluded
that it is in the children's best interests that respondents'
parental rights be terminated. Respondents appeal.
Respondent-father individually raises the issue of (I) whether
the trial court erred by considering the best interests of the
children during the adjudicatory phase of the termination hearing
and in basing its findings and conclusions on the testimony and
opinions of Bruce Steadman, where his testimony was beyond the
scope of his qualifications. Respondent mother similarly raises
issues concerning the testimony of Bruce Steadman, including
whether the trial court erred: (II) in finding that if the minor
children were not doing well in their present placement, [Mr.
Steadman's] recommendation would be placing the minor children in
another foster care placement and not back with the respondent
parents; and (III) by considering the report of Bruce Steadman,
which was largely a best interests of the child evaluation, while
determining whether grounds to terminate existed. Respondents also
present the following identical issues of whether the trial court
erred in concluding: (IV) respondents left the juveniles in foster
care for a period of more than twelve months without showing to the
satisfaction of the court that reasonable progress under the
circumstances had been made in correcting the conditions that led
to the removal of the minor children; (V) respondents were
incapable of providing proper care and supervision of the juvenilessuch that the juveniles were dependent and that there was a
reasonable probability that such incapability would continue for
the foreseeable future; (VI) respondents neglected their children
within the meaning of N.C. Gen. Stat. § 7B-1111(a)(1); and (VII)
respondents failed to pay a reasonable portion of the costs of care
for their children.
Review of an order terminating one's parental rights consists
of examining (1) the findings of fact to determine whether they are
supported by clear, cogent and convincing evidence and (2) the
conclusions of law to determine whether they are supported by the
findings of fact. In re Pope,
144 N.C. App. 32, 40, 547 S.E.2d
153, 158, aff'd
, 354 N.C. 359, 554 S.E.2d 644 (2001). Unchallenged
findings of fact are deemed supported by the evidence and are
binding on this Court on appeal. In re Beasley
, 147 N.C. App. 399,
405, 555 S.E.2d 643, 647 (2001). If the trial court's
determination of the existence of a single ground for termination
of rights can be upheld, then the appellate court need not consider
other grounds. In re Davis
, 116 N.C. App. 409, 413, 448 S.E.2d
303, 305, disc. review denied,
338 N.C. 516, 452 S.E.2d 808 (1994).
Both respondents contend that the trial court erred by
considering the report of Bruce Steadman, a licensed clinical
social worker, in determining the existence of grounds to terminate
parental rights. They argue that because his report was not based
upon his assessment of the parenting abilities of the parents butwas based upon an assessment of the best interests of the children,
the report should not have been considered in the adjudicatory
stage of the proceeding. They also argue that his testimony in the
form of a psychosocial assessment was beyond the scope of his
qualifications and expertise as a social worker.
The record shows that petitioner tendered Mr. Steadman as a
licensed professional social worker qualified to give psychological
assessments and substance abuse assessments. Respondent-father's
attorney expressly stated that he had [n]o objection to the
tender of Mr. Steadman while the attorney of respondent-mother
remained silent and did not object. In order to preserve a
question for appellate review, a party must have presented to the
trial court a timely request, objection or motion, stating the
specific grounds for the ruling the party desired the court to make
if the specific grounds were not apparent from the context. N.C.
R. App. P. 10(b)(1). Having failed to challenge the qualifications
of the witness in the trial court below, respondents are barred
from making this challenge for the first time on appeal. We thus
will not address the issue of his qualifications and dismiss these
assignments of error.
A termination of parental rights proceeding consists of two
stages: (1) an adjudication phase in which the trial court
determines, based upon the evidence, whether a ground to terminate
rights exists; and (2) if there is a ground, the trial court
proceeds to the disposition phase in which the court determines
whether it is in the best interest of the child to terminateparental rights. In re Howell
, 161 N.C. App. 650, 656, 589 S.E.2d
157, 160-61 (2003). Although different evidentiary standards apply
to each stage, it is not error for a trial court to hold a single
hearing integrating both phases because it is presumed, in the
absence of some affirmative indication to the contrary, that the
judge, having knowledge of the law, is able to consider the
evidence in light of the applicable legal standard. In re White
81 N.C. App. 82, 85, 344 S.E.2d 36, 38 (1986).
The trial court's findings of fact pertinent to Mr. Steadman's
report demonstrate that the court did indeed consider the report
under the applicable standard. In finding of fact number eleven,
the trial court expressly limited its consideration of Mr.
Steadman's report to assessing the parenting matters of the
[r]espondent [p]arents. In finding of fact number twelve, the
trial court noted that even if the children were not doing well in
their current foster care placement, Mr. Steadman could not
recommend returning the children to respondents. These findings
are contained within the trial court's adjudicatory findings. The
testimony of Mr. Steadman as to whether respondents were capable of
providing proper care and supervision of their minor children and
whether respondents had made reasonable progress under the
circumstances is directly relevant to the issues before the trial
court at the adjudicatory stage of the hearing. While the same
evidence is also relevant to an analysis regarding the best
interests of the minor children, this fact does not prohibit the
trial court from considering the evidence at the adjudicatorystage. Cf. In re Blackburn
, 142 N.C. App. 607, 613, 543 S.E.2d
906, 910 (2001) (Evidence heard or introduced throughout the
adjudicatory stage, as well as any additional evidence, may be
considered by the court during the dispositional stage.).
Respondent-mother also challenges the finding of fact that if
the children were not doing well in their current placement, Mr.
Steadman's recommendation is that the children be placed in another
home rather than be returned to respondents. She contends this
finding is not supported by clear, cogent and convincing evidence.
A trial court's findings of fact in a juvenile matter are
deemed conclusive, even where some evidence supports contrary
findings, if they are supported by clear and convincing evidence.
N.C. Gen. Stat. § 7B-805 (2005); In re Helms
, 127 N.C. App. 505,
511, 491 S.E.2d 672, 676 (1997). Clear and convincing evidence is
defined as evidence which 'should fully convince.' Williams v.
Blue Ridge Bldg. & Loan Ass'n
, 207 N.C. 362, 364, 177 S.E. 176, 177
(1934) (citation omitted). In making findings of fact, the trial
court must not simply recite allegations or evidence, but must
through processes of logical reasoning from the evidentiary facts
find the ultimate facts essential to support the conclusions of
law. In re Anderson
, 151 N.C. App. 94, 97, 564 S.E.2d 599, 601-02
(2002) (citation and quotations omitted).
Mr. Steadman testified that respondent-mother admitted to him
that she had not been compliant with the case plan recommendations.
Respondent-mother also admitted to him that she is impulsive,
dyslexic, and speech and hearing impaired. She also related thatshe has been physically abused by several men, she has twice
attempted suicide, and she has difficulty maintaining steady
employment. Respondent-mother also has limited insight and she
requires assistance in managing the activities of everyday living.
Based upon information that he was able to gather from testing and
other sources, including information provided by respondent-mother,
Mr. Steadman found that respondent-mother exhibits characteristics
of bipolar disorder, paranoia, and impulsiveness. Mr. Steadman
concluded that reunification with respondent-mother should not be
Similarly, with regard to respondent-father, Mr. Steadman
testified that respondent-father admitted he had not complied with
recommendations of the court and petitioner listing things he
should do in order to regain custody of the children. Respondent-
father has a history of substance abuse and inability to maintain
stable or regular employment. Based upon respondent-father's
failure to comply with the court orders and to demonstrate that he
could be a parent to the children, Mr. Steadman concluded that
reunification with respondent-father should not be pursued. We
hold competent evidence supports the trial court's finding of fact
and the trial court properly considered this evidence. These
assignments of error are overruled.
Respondents next contend the trial court erred in concluding
they have left the children in foster care for a period of more
than twelve months without showing to the satisfaction of the courtthat reasonable progress had been made in correcting the conditions
that led to the removal of the children from their home.
Respondents argue this conclusion is inadequate to support
termination of rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(2).
This statute provides for termination of rights on the ground
[t]he parent has willfully left the juvenile
in foster care or placement outside the home
for more than 12 months without showing to the
satisfaction of the court that reasonable
progress under the circumstances has been made
in correcting those conditions which led to
the removal of the juvenile.
N.C. Gen. Stat. § 7B-1111(a)(2) (2005). Respondents argue the
trial court erred by failing to conclude that they willfully left
the juveniles in foster care without making reasonable progress in
correcting the conditions that led to the removal of the children
from the home. They also argue the findings of fact and evidence
do not support such conclusion.
The willful action within the meaning of N.C. Gen. Stat. §
7B-1111(a)(2) is something less than the purposeful or deliberate
action required to terminate parental rights for abandonment
pursuant to N.C. Gen. Stat. § 7B-1111(a)(7). In re Shepard
N.C. App. 215, 224, 591 S.E.2d 1, 7 (2004). Willfulness under
this section means something less than willful abandonment and does
not require a finding of fault by the parent. In re B.S.D.S.
N.C. App. 540, 545, 594 S.E.2d 89, 93 (2004). Termination on this
ground may be made even though the parent has made some efforts to
regain custody of the children. In re Becker
, 111 N.C. App. 85,
95, 431 S.E.2d 820, 826-27 (1993). The efforts made by the parentsmust have obtained positive results. In re Nolen
, 117 N.C. App.
693, 700, 453 S.E.2d 220, 225 (1995).
At the time the children were adjudicated as neglected,
respondents stipulated that the allegations of the petition were
true. They thus stipulated that one of the children had sustained
an unexplained burn to the side of his face; that the home in which
they were living was infested with roaches; that the home was
filthy as dried feces were found on fixtures and the floors were
heavily stained with dirt; that a knife was left on the floor; that
an electrical receptacle had a broken cover accessible to the
children; that respondent-mother was uncooperative with law
enforcement officers when they were called to assist; and that
respondent-mother was not providing adequate supervision of the
Respondents were unable to meet the children's basic needs
even though respondent-father was employed. Respondent-father was
subsequently incarcerated, leaving the unemployed mother with
insufficient income to meet the needs of the children. Respondent-
mother had been attending classes at Mitchell Community College but
she was unable to maintain adequate attendance or grades to be
successful. Respondent-mother also had a history of mental
illness, including a commitment to Broughton Hospital for a second
time in 1997. Her only child at the time, the eldest of the three
juveniles at bar, was removed from her care on 15 July 1997. The
child had dried feces on his body. Between 1997 and 2002 the
Iredell County Department of Social Services had received six otherreports expressing concern about the care and living environment of
The evidence at the termination hearing shows that prior to
the removal of the children from the home, respondent-mother had
been offered assistance with parenting skills, housekeeping,
budgeting and housing but despite all of this assistance,
respondent-mother could not safely parent the children so as to
prevent their removal from the home. Subsequent to the children's
removal from the home, in an effort to help respondent-mother deal
with the children's behavior problems, petitioner engaged a parent
educator to provide interactive therapy and work with respondent-
mother during visitations with the children. Despite this
intervention, respondent-mother could not control the eldest
child's behavior. Her inability to control or discipline the
children has been an ongoing problem. The social worker supervisor
in charge of the case expressed frustration that respondent-mother
would ignore or turn her back to the supervisor when she offered
parenting instruction or advice to respondent-mother. Further
proof of respondent-mother's resistance to instruction or failure
to learn is provided by respondent-mother's own testimony whereby
she could not identify a single item she learned during parenting
Respondent-father was incarcerated in 2002 after probation was
revoked on the ground respondent-father used illegal controlled
substances in violation of the terms and conditions of probation.
Notwithstanding his completion of the DART program for thetreatment of substance abuse while in prison, respondent-father
twice tested positive for the consumption of cocaine subsequent to
his release from prison in 2004, the first on 26 July 2004 and the
second on 26 August 2006. The second positive test occurred merely
one week after a case plan was established on 19 August 2004 for
him. That case plan included parenting classes, substance abuse
assessment and following the recommendations of the assessment,
random drug tests, maintaining stable housing and employment, and
completion of anger management classes. Respondent-father did
complete parenting classes and he underwent a drug assessment but
he never produced a report of the assessment as ordered by the
court. Respondent-father also enrolled in anger management classes
but missed so many classes he was dropped from the program.
Respondent-father also refused on at least two occasions to submit
to random drug screens.
Respondents cite their obtaining employment, moving into a
nice home with a fenced yard, attendance of parenting and anger
management classes, and attendance of psychiatric appointments and
drug evaluation assessments as evidence of reasonable progress.
The evidence also shows, however, that the employment was obtained
just a few months prior to the termination hearing and was obtained
through a temporary employment agency. The evidence also shows
that respondent-mother had consistently been unemployed for years,
that she had been terminated from her immediate past employment for
cause, and that she had been unemployed for more than nine months
after being terminated from her most recent employment. Respondents had only recently moved into the home with the fenced
yard and had failed to notify the DSS or the court about the new
residence so a home study could be conducted.
We have held that the prolonged inability of a parent to
rectify the conditions which led to the removal of the children,
despite good faith or good-intentioned efforts made near the time
of the termination hearing, will support a finding of willfulness
to warrant termination of parental rights under N.C. Gen. Stat. §
7B-1111(a)(2). In re B.S.D.S.
, 163 N.C. App. 540, 546, 594 S.E.2d
89, 93 (2004). Respondents have demonstrated a similar prolonged
inability to comply during the three years the children have been
in foster care and longer.
We accordingly hold the trial court's findings of fact are
based upon clear, cogent, and convincing evidence and support its
conclusion of law that respondents have left the children in foster
care for a period of more than twelve months without showing to the
satisfaction of the court that reasonable progress had been made in
correcting the conditions that led to the removal of the children
from their home. Thus, the trial court did not err in terminating
respondents' parental rights to their minor children, N.D.H.,
C.J.H., and C.E.H. Having held this ground is supported by the
record, we need not consider respondents' arguments as to the
remaining three grounds. Id.
at 546, 594 S.E.2d. at 94.
Judges CALABRIA and ELMORE concur.
Report per Rule 30(e).